Joe Meadows

Yesterday, the Sixth Circuit heard an anonymous copyright infringement case of first impression. See Signature Management Team, LLC v. Doe, No. 16-2188 (6th Cir.). The issue: whether an adjudicated copyright infringer can remain anonymous.

The infringer said he can.

“John Doe” appeared in the case through counsel and defended against Signature’s infringement claim. He lost. But he maintained his right to anonymity under the First Amendment. According to Doe, a court should balance a defendant’s right to remain anonymous against a plaintiff’s need for the defendant’s identity at all stages of litigation, including post-judgment. And here, as the lower court held, Signature prevailed but it didn’t need Doe’s identity where no damages were sought and Doe agreed to cease the infringement.

The Electronic Frontier Foundation – a nonprofit civil liberties organization — filed an amicus brief in support of Doe. It too argued that the First Amendment / anonymity balancing test continues to apply post-judgment. “[P]laintiffs seeking to unmask enjoy no countervailing constitutional right to automatically learn speakers’ identities upon establishing their liability.”

Signature, however, complained that its judgment against Doe was worthless – a “hollow victory.” How would Signature enforce the judgment if Doe backed out on his promise not to infringe?

Signature argued that the First Amendment does not extend to unprotected speech. Therefore, Doe lost any right to anonymity once the court adjudicated him a copyright infringer. A balancing test would be pointless if there’s nothing to balance in Doe’s favor. Even so, the balancing test weighed heavily in Signature’s favor: Signature won its infringement claim, Doe had repeated the infringement, and Doe may infringe again – he continues to harbor animus against the company.

At oral argument, the Sixth Circuit focused on two issues.

First, if Signature’s judgment isn’t for money damages and the injunctive relief may have been mooted, does Signature really need Doe’s name? In other words, should the adjudication of infringement automatically end the infringer’s right to remain anonymous, regardless of the relief granted? If the answer is yes, wouldn’t that discourage anonymous infringers from defending against claims through counsel? Infringers might be better off hiding from the litigation altogether.

Second, should Signature have to engage in the First Amendment / anonymity balancing test twice: once during discovery and then again post-judgment? No case has ever so held. Of course, anonymous judgments in favor of plaintiffs are rare.

A decision in favor of Doe could encourage anonymous unlawful speech. A decision in favor of Signature could encourage suits designed only to “out” the name of an anonymous critic. Stay tuned on a decision …